India: Tribunalisation In India And The Landmark Judgement Of Madras Bar Association

Tribunals are not defined in any legislation. Courts, in various judgments, have clarified that the tribunals are not courts.¹ The expression "Tribunal" as used in Article 136² does not mean the same thing as court but includes, within its ambit, all adjudicating bodies, provided they are constituted by a State and vested with judicial functions as distinguished from administrative or executive functions. They are described as Quasi-Judicial institutions.³ Tribunals are generally set up under different statutes, such as National Company Tribunal under section 410 of the Companies Act of 2013. The 42nd amendment of 1976⁴ incorporated Tribunals for administrative and other purposes within Article 323 A⁵ and 323 B⁶ of the Indian Constitution. After the 42nd Amendment, the Administrative Tribunals Act, 1985, was enacted by the Parliament to provide aggrieved government officials with quick and affordable justice.

Administrative Tribunals Act of 1985 was passed with a view to deal with the matters as listed under Article 323A of the Indian Constitution. Some of the Tribunals are Armed Forces Tribunal, Central Administrative Tribunal, Cyber Appellate Tribunal, Debt Recovery Tribunal, and Income Tax Appellate Tribunal amongst others. The Constitutional Bench, in its judgement titled Madras Bar Association Vs. Union of India⁷, impacted the individual tribunals, which is also called the NTT⁸ Case. The National Tax Tribunal was set up to take over the then existing jurisdiction of High Courts in India to hear and decide the appeals pertaining to questions of law, relating to Income Tax, Customs, Central Excise and service tax matters, arising from the Appellate Tribunals. The Hon'ble Supreme Court has struck down the provisions of NTT Act on the ground that the same were responsible for the NTT being a less efficacious remedy than the High Court it was supposed to replace. The Hon'ble Supreme Court in NTT Case has struck at the heart of the NTT Act by striking down Section 5, 6, 7 ,8 and 13 as being unconstitutional. The principle, that a Tribunal replacing a Court must enjoy at least as much of the protections of court, can be traced to another Constitutional bench judgement titled as L. Chandra Kumar Vs. Union of India⁹ and applied in Union Of India Vs. Madras Bar Association¹⁰ (NCLT¹¹ Case), where certain provisions of the Companies Act of 1956 relating to the NCLT and NCLAT¹² were held to be unconstitutional and defective. However, the NCLT and NCLAT were themselves held to be constitutional and valid in its judgement in the NTT Case. In a 7-judge bench judgement of L. Chandra Kumar (supra), it concluded that, according to Article 226 and 227¹³, the right of the High Courts to exercise judicial superintendence over the judgements of all courts and tribunals is part of the constitutional basic structure. It claimed that all Tribunals decisions whether created pursuant to Article 323 A or Article 323 B of the Constitution, shall be subject to the written jurisdiction of the High Court's pursuant to Article 226 before a High Court Division Bench under whose territorial jurisdiction the specific tribunal falls. The early phase of tribunal litigation concentrated on the constitutionality of the creation of tribunals without violating the inherent powers of the High Courts and the Supreme Court, L. Chandra Kumar decision marked the end of this process by maintaining the tribunals constitutional validity if certain conditions were met. The most important of these conditions was that the Writ Jurisdiction of the High Court under Article 226 and the Supreme Court under article 32 should not be removed.

The parameters of efficacy and independence as laid down by the Supreme Court to test the provisions of a Tribunal legislation is 'Efficacy and Independence'. Each clause of a tribunal legislation has to be tested against the relevant parameter set out to see whether they meet the constitutional requirement. While the Hon'ble Supreme Court has enunciated these principles in the NCLT and the NTT case judgements as discussed above, the question as to how to assess the constitutional independence and efficacy of the Tribunals which replace the jurisdiction of regular Civil or Criminal Courts remains to be seen. In both the cases of NCLT and NTT, the Tribunal in question was clearly being vested with the jurisdiction of a High Court.

The tribunals play an important role in the sphere of the adjudication of disputes. The tribunals function differently from courts, from the manner of appointment to the procedure followed. The tribunals do not have to follow any uniform procedure as laid down under Civil Procedure Code and under Indian Evidence Act but they have to follow the principles of natural justice. However, the tribunals have their own drawback including lack of independence; Administrative concerns including inconsistencies in the qualification of members, tenure, age of retirement and Nodal ministries; Jurisdiction of the High Court and pendency of cases and vacancy of members in tribunals. The administration of tribunals has become an important part of government as well as the life of the individual. The jurisdiction of High Court may be abolished without impacting the jurisdiction of Hon'ble Supreme Court as has also been held in the judgment titled as S.P. Sampath Kumar Vs Union of India.¹⁴

Footnotes

1 Durga Shankar Mehta Vs, Thakur Raghuraj Singh, Supreme Court 1954 AIR 520

2 Article 136- Special Leave to Appeal by the Supreme Court Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or mater passed or made by any Court or Tribunal in the territory of India. Noting in clause (1) shall apply to the judgement, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed forces.

3 Can be an individual or body with powers resembling court of law.

4 Bill No, 91 of 1976 which was enacted as the Constitution (42nd amendment), Act of 1976

5 Article 323A- 1. Parliament by law, provides for the adjudication of trials by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of Government of India or of any corporation owned or controlled by the Government.

2. A law under clause (1) -

a. provides for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more states.

b. specifies the jurisdiction, powers.............

6 Article 323B- Tribunals for other matters

1. The appropriate legislature may, by law, provide for the adjudication or trial by Tribunals of any disputes, complaints or offences with respect to all or any of the matter specified in clause (2) with respect to which such legislature has power to make laws.

2. The matters referred to in clause (1) are the following, namely.

a. Levy, assessment, collection and enforcement of any tax.

b. Foreign exchange import and export across customs frontiers;

.............

7 2014 SCC Online SC 771

8 National Tax Tribunal Act, 2005

9 1997 (3) SCC 261

10 (2010) 11 SCC 1

11 National Company Law Tribunal

12 National Company Law Appellate Tribunal

13 Writ Jurisdiction of High Courts.

14 1987 AIR 386

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